Law on Courts

A recipe for judicial independence

At a swearing-in ceremony of Judges and Prosecutors back in December 2003, President of the Supreme Court of Kosovo Rexhep Haxhimusa said “In every state the judiciary constitutes the axis of the rule of law, at the epicentre of which stand human freedoms and rights, whose protection is mainly in the domain of the judiciary, without which one could not imagine a civilized, advanced and democratic society.”

In this context, Mr. Haxhimusa stressed the need “to establish an independent judiciary, which is separate from the other two powers, and vested with its relevant competences, immune from influence of any kind, which in effect, represents a fundamental prerequisite for a genuine exercise of this power.”

Institutions that control judicial administration and management can exercise external influence over courts in general, as well as over individual judges. The way courts are managed impacts on the judicial independence, so the influence of administrative structures on the judiciary requires careful consideration. This constitutes one of the key underlying principles in the transfer of responsibilities to the new Kosovo Ministry of Justice to be established this year.

International standards vary as to the form of judicial administration best able to preserve judicial independence. The European Association of Judges calls for the judiciary to be administered by an independent body comprised of judges. The Council of Europe, reflecting the existing differences among European states, allows for a variety of models. At a minimum, all the standards suggest that the bodies responsible for administering the courts should be prevented from using their authority to influence judges’ decision-making and that the judiciary should have some form of significant input into its own administration. Otherwise judicial independence could be undermined.

The key lies in establishing transparent and unambiguous rules and procedures to prevent the administrative body- wherever it sits-from interfering with the core decision-making independence of judges. The draft ‘Law on Courts’, proposed by the Department of Justice, provides for a truly independent, impartial, responsible and accountable judiciary in Kosovo, consistent with European standards.

The Kosovo Judicial Council (KJC), which will replace the Kosovo Judicial and Prosecutorial Council (KJPC) and will be also responsible for the administration of the courts, shall act independently and be responsible to regulate the affairs of the judiciary. In particular, the draft law provides the KJC with clear and transparent criteria for judicial appointments and sets out disciplinary liability for judges. The establishment of the KJC was designed to remove improper political or other influence within the judicial system while making sure that judges uphold the rule of law for all citizens.

The KJC will serve as an administrative arm of the judicial branch with defined powers. Its role is no longer that of an advisory body, as its predecessor KJPC has been. The Law on Courts must operate within the Constitutional Framework and comply with the current and future laws of Kosovo. Indeed, the KJC will have authority over many functions associated with the management and administration of the judiciary. The KJC will play a primary role in recommending the judicial budget, administering the budget, and providing policy guidance for the court administration.

Currently, court administration is a transferred power under the competence of the Ministry of Public Services. The ‘Law on Courts’ envisages placing court administration under KJC control in order to limit potential undue influence of the executive branch on the judicial branch.

Responsibilities over the organization and proper functioning of the courts; training, including professional and vocational training, of judges and judicial personnel; appointment, disciplining and dismissing of members of judicial support staff will pass under the KJC control.

Further, according to the new Law, the KJC will have a direct overview on issues related to, among others, finance (including resources allocation) and personnel matters.

Achieving an independent judiciary entails ensuring not only that judges analyse evidence and interpret the law free of external coercion and influence, but also that the judicial functions are institutionally separate from the executive and legislative powers. In other words, within appropriate limits, the Kosovo judiciary will gain the power to self-manage and self-administer.

Arianna Lepore
Legal Policy Division, Deptt of Justice